# State v. McKee

> Ohio Supreme Court · April 11, 2001 · 91 Ohio St. 3d 292

URL: https://www.frixlaw.com/law-library/cases/6782213

## Case

- **Full name:** The State of Ohio v. McKee
- **Court:** Ohio Supreme Court
- **Decided:** April 11, 2001
- **Citations:** 91 Ohio St. 3d 292
- **Precedential status:** Published
- **Opinion:** Dissent by Cook
- **Judges:** Cook, Douglas, Moyer, Pfeifer, Resnick, Stratton, Sweeney
- **Cited by:** 199 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6782213

## How later opinions describe it (automated extraction)

- concluding that failure to lay experiential foundation for recognizing drug renders opinion inadmissible
- noting a witness could previously only testify to facts, not opinions

## Opinion text

Cook, J.,
dissenting. I am in substantial agreement with the rule that the majority announces today. Under Evid.R. 701, a properly qualified lay witness may render an opinion on the identity of a controlled substance. And properly admitted lay opinion testimony may provide sufficient evidence of a substance’s identity to support a conviction for corrupting another with drugs. Despite my agreement with these principles, however, I am unable to concur in the ultimate decision to reverse McKee’s conviction on the ground that the trial court committed plain error in allowing lay opinion testimony lacking the requisite foundation. I would find no plain error in this case and take this opportunity to clarify the contours of the plain-error doctrine.
Ordinarily, the failure to lodge a timely objection to the admission of testimony results in the forfeiture of any claimed error. See, e.g., State v. Allen (1995), 73 Ohio St.3d 626, 633 , 653 N.E.2d 675, 684 . 3 Crim.R. 52(B) tempers the harsh consequences of failing to object by stating, “Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention *299 of the court.” The rule is identical to Fed.R.Crim.P. 52(b), which the United States Supreme Court has described as a “ ‘careful balancing of our need to encourage all trial participants to seek a fair and accurate trial the first time around against our insistence that obvious injustice be promptly redressed.’ ” United States v. Young (1985), 470 U.S. 1, 15 , 105 S.Ct. 1038, 1046 , 84 L.Ed.2d 1, 12-13 , quoting United States v. Frady (1982), 456 U.S. 152, 163 , 102 S.Ct. 1584, 1592 , 71 L.Ed.2d 816, 827 . This court has repeatedly stated that plain error under Crim.R. 52(B) will not exist unless we can conclude that but for the error, the outcome of the trial would clearly have been otherwise. See, e.g., State v. Lindsey (2000), 87 Ohio St.3d 479, 482 , 721 N.E.2d 995, 1001 ; State v. Moreland (1990), 50 Ohio St.3d 58, 62 , 552 N.E.2d 894, 899 ; State v. Long (1978), 53 Ohio St.2d 91 , 7 O.O.3d 178 , 372 N.E.2d 804 , paragraph two of the syllabus. Accordingly, appellate courts should not take notice of an error, no matter how clear, if the error had no bearing on the outcome of the trial.
Today, the majority finds an outcome-determinative error in the admission of lay opinion testimony and decides that the plain-error doctrine “requires us to” uphold the court of appeals’ reversal of McKee’s conviction. But the outcome-determinative nature of an error is not the only factor to consider in deciding whether to notice the error under Crim.R. 52(B). To the contrary, the prejudicial nature of the forfeited error is only one element to be satisfied before the appellate court may correct the error.
In United States v. Olano (1993), 507 U.S. 725 , 113 S.Ct. 1770 , 123 L.Ed.2d 508 , the United States Supreme Court clarified the standard for plain-error review under Fed.R.Crim.P. 52(b). The court explained that three limitations circumscribe an appellate court’s decision whether to correct an error absent a timely objection by the defendant at trial. First and most fundamentally, there must be error, i.e., a deviation from a legal rule. Id. at 732-733 , 113 S.Ct. at 1777 , 123 L.Ed.2d at 518 . Second, the error must be plain. To be plain, the error must be “ ‘clear’ or, equivalently, ‘obvious.’ ” Id. at 734 , 113 S.Ct. at 1777 , 123 L.Ed.2d at 519 , citing Young, 470 U.S. at 17 , 105 S.Ct. at 1047 , 84 L.Ed.2d at 13, fn. 14 . Third, the error must affect substantial rights. In most cases, this means that the error must have affected the outcome of the trial. Olano, 507 U.S. at 734 , 113 S.Ct. at 1777-1778 , 123 L.Ed.2d at 519-520 .
Even if a forfeited error satisfies these three prongs, however, an appellate court need not correct it. By its very terms, Crim.R. 52(B) is discretionary; a reviewing court “may” notice plain errors but is not obliged to do so. Id. at 735 , 113 S.Ct. at 1778 , 123 L.Ed.2d at 520 . We have recognized this discretionary aspect of the rule by instructing courts to take notice of plain error “with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.” Long at paragraph three of the syllabus; see, also, *300 Young, 470 U.S. at 15 , 105 S.Ct. at 1046 , 84 L.Ed.2d at 12 . Olano further explained that an appellate court should exercise its discretion to correct plain errors affecting substantial rights “if the error ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’ ” Olano, 507 U.S. at 736 , 113 S.Ct. at 1779 , 123 L.Ed.2d at 521 , quoting United States v. Atkinson (1936), 297 U.S. 157, 160 , 56 S.Ct. 391, 392 , 80 L.Ed. 555, 557 . At a minimum, appellate courts “should no doubt correct a plain forfeited error that causes the conviction or sentencing of an actually innocent defendant.” Id. But plain-error correction under Crim.R. 52(B) is not limited to cases of actual innocence. Id.
I would adopt the Olano method of analyzing when to correct plain error under Crim.R. 52(B). Olano’s framework is true to the text of the rule, which by its very terms circumscribes the authority of an appellate court to correct plain error. Olano, 507 U.S. at 732 , 113 S.Ct. at 1776 , 123 L.Ed.2d at 518 . In contrast, an analytic framework requiring reviewing courts to correct an outcome-determinative forfeited error ignores two vital limitations embodied in Crim.R. 52(B)’s text: the type of error (“plain”) that can be corrected and the court’s discretion (plain errors “may be noticed”) in deciding whether to correct it.
Utilizing the Olano framework, I would conclude that reversal is not warranted in this case. Under the rule announced by the majority today, the admission of lay opinion testimony concerning the identity of a controlled substance is erroneous unless the proponent of the testimony establishes a proper foundation for it. This rule arguably establishes the first prong of the Olano plain-error analysis, i.e., an error having been committed. This case fails to satisfy Olano’s second prong, however, because the error recognized by the majority is not plain. To be plain, an error must be obvious in light of the law at the time of appeal. See Johnson v. United States (1997), 520 U.S. 461, 467-468 , 117 S.Ct. 1544, 1549 , 137 L.Ed.2d 718, 727-728 ; accord State v. Marple (1996), 197 W.Va. 47, 53 , 475 S.E.2d 47, 53 (applying Olano). But the rule announced today was not clear at the time of appeal; to the contrary, there was a conflict in the districts (concerning the admissibility of lay opinion testimony identifying a controlled substance) that was unresolved until this court’s decision today. And the court of appeals cited no controlling decision from its own district establishing that the admission of the girls’ testimony was error. Several federal appellate courts applying the Olano analysis have held that an error cannot be deemed plain if there is no controlling case law on point and the authority in other circuits is split. See, e.g., United States v. Aguillard (C.A.11, 2000), 217 F.3d 1319, 1321 ; United States v. Thompson (C.A.9, 1996), 82 F.3d 849, 855 ; United States v. Alli-Balogun (C.A.2, 1995), 72 F.3d 9, 12 ; United States v. Williams (C.A.6, 1995), 53 F.3d 769, 772 . Simply put, if the law is unclear on a particular issue at the time of trial and remains that way at the time of appeal, the error cannot be plain and *301 should not be noticed under Crim.R. 52(B). See United States v. David (C.A.4, 1996), 83 F.3d 638, 642-643 . As the David court explained:
“If the contemporaneous objection requirement is to have any real force, presumably an objection would be required * * * in the circumstance where the law at the time of trial is unclear as to whether the [trial] court’s proposed course would constitute error. A timely objection in such a circumstance would provide the court an opportunity to consider the question, possibly avoid the commission of an error, and thereby prevent the need for retrial upon appellate reversal — the very purposes of the contemporaneous objection rule.” (Footnote omitted.) Id. at 643 .
In this case, it was not clear either at the time of trial or by the time of the direct appeal that the girls’ testimony identifying marijuana was inadmissible. 4 I therefore cannot join in the majority’s determination that the trial court committed plain error by failing to follow a rule that was not definitively announced until today.
I would adopt the Olano framework for analyzing plain error under Crim.R. 52(B) and find that any error committed by the trial court in this case was not plain.
Wood & Lamping, L.L.P., and David C. DiMuzio, for appellant.
Strauss & Troy and Franklin A. Klaine, Jr., for appellee Mirge, Inc.
. We have often referred to the failure to object as a waiver of any error. A failure to object, however, is more accurately characterized as a forfeiture. See United States v. Olano (1993), 507 U.S. 725, 733 , 113 S.Ct. 1770, 1777 , 123 L.Ed.2d 508, 519 . “Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the ‘intentional relinquishment or abandonment of a known right.’ ” Id., quoting Johnson v. Zerbst (1938), 304 U.S. 458, 464 , 58 S.Ct. 1019, 1023 , 82 L.Ed. 1461, 1466 . While waiver and forfeiture are not the same, courts “have so often used them interchangeably that it may be too late to introduce precision.” Freytag v. Commr. of Internal Revenue (1991), 501 U.S. 868, 894 , 111 S.Ct. 2631, 2647 , 115 L.Ed.2d 764, 790, fn. 2 (Scalia, J., concurring). Nevertheless, the distinction retains some significance in the context of Crim.R. 52(B). A right that is waived in the true sense of that term cannot form the basis of any claimed error under Crim.R. 52(B). Olano, 507 U.S. at 733 , 113 S.Ct. at 1777 , 123 L.Ed.2d at 519 . On the other hand, mere forfeiture does not extinguish a claim of plain error under Crim.R. 52(B). Id.
. The David court distinguished the situation where the law was clear at the time of trial (and contrary to the defendant’s position on appeal), but changed by the time of appeal by a supervening decision. In that instance, the David , court held that an error would be deemed plain “where an objection at trial would have been indefensible because of existing law, but a supervening decision prior to appeal reverses that well-settled law, rendering the defendant’s claim clearly meritorious.” 83 F.3d at 645 . The United States Supreme Court adopted this view in Johnson, holding that “in a case * * * where the law at the time of trial was settled and clearly contrary to the law at the time of appeal],] it is enough that an error be ‘plain’ at the time of appellate consideration.” Johnson v. United States, 520 U.S. at 468 , 117 S.Ct. at 1549 , 137 L.Ed.2d at 727-728 . This case presents no such situation.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6782213. Public record. Not legal advice.